The IAM and Varig are parties to a collective bargaining agreement, made and entered into on May 3, 1990; the collective bargaining agreement became amendable on September 1, 1992.
*fn2"
Pursuant to the statutory procedures for amending collective bargaining agreements in the airline industry, 45 U.S.C. § 156,
*fn3"
the Union and Varig exchanged their "section 6 notices," so called because they were exchanged pursuant to Section 6 of the RLA (codified as 45 U.S.C. § 156).
*fn4"
The Company's and IAM's section 6 notices, dated July 17, 1992, and July 21, 1992, respectively, Complaint, P 13, were not made part of the record. The first meeting between the two parties was held on September 16, 1992, Affidavit of Martin C. Seham, March 16, 1994 ("Seham Aff'd"), P 2, and each side exchanged a list of proposed changes for the collective bargaining agreement.
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In their list, dated September 11, 1992, Varig proposed, among other things, that "all restrictions on sub-contracting shall be eliminated." Seham Aff'd, Ex. A.
*fn6"
Varig's September 11, 1992 list runs for eight pages and includes several dozen items, including a proposition to eliminate Article XVIII ("Union Security") of the agreement.
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Plaintiffs' September 1, 1992 list runs for six pages and includes over twenty items, including proposals on bonuses, wage increases and overtime, and holidays. Complaint, Ex. 1.

In a document dated January 13, 1993, entitled "Varig/IAM Negotiations," and presented to the Union at a meeting on the same day, Varig stated that "in lieu of the Company's proposal to eliminate all restrictions on subcontracting, the Company proposes [several] measures[.]" Complaint, Ex. 3. The changes suggested by the Company included, inter alia, a confirmation in the collective bargaining agreement that work done by a shipper or shipper's agent on premises other than Varig would not constitute subcontracting; a confirmation that work performed by Varig employees at premises not covered by the collective bargaining agreement would not constitute subcontracting; and that severance pay will be paid to any employee permanently displaced because of the application of the new measures. Varig's January 13, 1993 proposal expired by its terms on February 13, 1993, and included a total of five items for discussion: duration, supplemental pension plan, wage scale, medical coverage, and subcontracting.

On February 9, 1993, Varig applied for mediation services from the National Mediation Board (the "NMB"), pursuant to 45 U.S.C. § 155 First.
*fn8"
The parties began mediated negotiations in April of 1993 and met on several occasions over a three month period. In a document entitled "Varig Proposals" and dated April 14, 1993, the Company informed the Union that it was its position that "there shall be no limitations on the company's right to subcontract." Complaint, Ex. 5. The April 14, 1993 proposals were also set to expire in one month's time and included a total of seven items: wage rates, duration, medical coverage, subcontracting, seniority rights, holidays, and a reduction in starting and limiting progression of wage scales for those hired after the revised contract is in effect. In a letter dated April 19, 1993, the Company also proposed elimination of Article XII(e) of the collective bargaining agreement which provided that the Union would have the right to designate the broker of record for the life and health insurance and pension plans for unionized employees. Complaint, Ex. 6. In a letter dated June 9, 1993, the Company reiterated its position that it must "negotiate the right of limited subcontracting in the Cargo Department." Complaint, Ex. 7 at 2.

The Union alleges that during the statutory cooling off period the parties "reaffirmed their agreement in principle, and agreed that the union would put the agreement in writing." Complaint, P 24. Varig contests this characterization and submits that during the meetings which took place during the thirty-day period, "the Union . . . regularly threatened the Company with economic damage if the agreement were not signed to its satisfaction within the cooling off period." Seham Aff'd, P 25. Whereas Varig maintains that it never refused to meet during the thirty-day period, Seham Aff'd, P 25, the Union contends that it refused to honor an agreement to meet on December 13 through 17, 1993, but would first be available on December 16, 1993, at the end of the expiration of the thirty-day period, Complaint, P 25.

The parties met again on December 17, 1993, together with representatives of the NMB. At this meeting the Company rejected the December 10, 1993 written proposal by the Union and the Union agreed to put the Company's latest offer to a vote of the membership. Complaint, P 26. In a document entitled, "Final Position Statement of Varig Meeting W/ Mediator & NMB Board Member," dated December 17, 1993, the Company proposed that "except for work under the Cargo Automation Program as set out above, there shall be no restriction on the Company's right to subcontract work performed by the Cargo Department." Roach Decl., Ex. B. The "Final Position Statement" is a three page document which includes a total of ten items including, inter alia, duration, wage increase, Cargo Automation Program, technical maintenance, and subcontracting. The Union alleges that Varig, at this December 17, 1993 meeting, via Seham, agreed that it would maintain the status quo pending the ratification vote. Complaint, P 26.

The parties met again on December 20, 1993, and the Union informed Varig that its vote would take place on December 28, 1993. Complaint, P 28. The Union alleges that Seham again pledged that the Company would observe the status quo pending the vote. Complaint, P 28. Varig denies that any such promise was made. Answer, P 26; Seham Aff'd, P 30 (Varig agreed to maintain the status quo for a total of 48 hours only).

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the Court emphasized once again that granting a motion for summary judgment requires that there be no genuine issue of material fact. "Only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." Id. at 248. The Court went on to teach that "if the evidence is merely colorable . . . or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." . . . Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rules, prior to trial, that the claims and defenses have no factual basis.

With these principles in mind, the bases asserted by the Union for the relief it seeks will be considered separately.

II. The First Cause of Action

As noted above, plaintiffs have alleged a violation of 45 U.S.C. §§ 152 First and Seventh, and 156 by "unilaterally changing fundamental conditions of employment" by failing to submit those changes to negotiation, arbitration or mediation, and by making changes which were not included in the Company's final offer. Section 152 First of Title 45 of the United States Code provides in full that,

It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.

45 U.S.C. § 152 First. Section 152 Seventh provides that "no carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title." 45 U.S.C. § 152 Seventh. Section 156, in turn, provides in relevant part that,

In every case where such notice of intended change has been given . . . rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by section 155 of this title, by the Mediation Board . . . .

45 U.S.C. § 156 (emphasis added). It is uncontroverted that the services of the NMB, pursuant to 45 U.S.C. § 155, terminated as of November 17, 1993. Complaint, Ex. 12.

If plaintiffs have alleged that Varig made changes in working conditions which are beyond the scope of permissible self-help, then the complaint would survive a Rule 12(b)(6) analysis and the court would look to outside materials to determine if there is a genuine issue of material fact. A review of the present state of the law, however, indicates that by implementing changes which were included in the Company's original section 6 notice, and by not implementing changes which "strike a fundamental blow to union or employer activity and the collective bargaining process itself[,]" Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 489 U.S. 426, 442, 103 L. Ed. 2d 456, 109 S. Ct. 1225 (1988), Varig did not engage in impermissible self-help and hence plaintiffs' first cause of action fails to state a claim upon which relief can be granted.

In 1988, the Supreme Court of the United States affirmed by a 4-4 vote the decision of the Eighth Circuit in Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 809 F.2d 483 (8th Cir. 1987) ("TWA"), aff'd by equally divided court, 485 U.S. 175 (1988), which held that a carrier may not institute unilateral changes in wages, or other terms and conditions of employment unless the proposed changes have been made the subject of a section 6 notice and RLA procedures. In TWA, the parties exchanged section 6 notices and proceeded to mediation under the supervision of the NMB. The company refused the NMB's offer of arbitration and the parties, once released by the NMB, were allowed to engage in self-help as of March 7, 1986. On that day the union struck the airline and the company implemented new working conditions, including abrogation of the union security and dues check-off provisions contained in their collective bargaining agreement. "These provisions were not the subject of a section 6 notice in which TWA sought changes in the collective bargaining agreement." Id. at 484.

In affirming the district court's granting of summary judgment to the union, the court held that the union security clause which was not the subject of the section 6 notice could not be altered. Id. at 485. Because the policy of the RLA is to encourage dispute resolution through mediation and negotiation, the court was concerned that,

The court, relying on Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, AFL-CIO v. Florida East Cost Railway Co., 384 U.S. 238, 16 L. Ed. 2d 501, 86 S. Ct. 1420 (1966) ("FEC"), stated that, "the Supreme Court thus recognized that bargaining is central to the RLA and that even the existence of a strike does not empower management to annul those terms of the collective bargaining agreement that had not been subject to prior bargaining." TWA, 809 F.2d at 487. Any terms of the collective bargaining agreement which were not the subject of the section 6 notice and the RLA mediation provisions remain binding on the parties unless abrogation of those terms are necessary for the company's continued operation. Id. at 491 ("If a working condition has not been subject to the procedures of the Act, it may not be changed even after expiration of the status quo period unless truly necessary for the continued operation of the airline.") (citing FEC, 384 U.S. at 248). Based on the policy considerations articulated by the Court in FEC and as stated in the RLA (i.e., encouraging mediation, recognizing the public service nature of the business and the carrier's responsibility to the public to maintain the public service at all times), the court rejected the company's argument that upon the expiration of the cooling off period, all provisions of the collective bargaining agreement terminate. Id. at 485-91.
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Because terms not included in the section 6 notice and subject to the RLA's mediation provisions survive the cooling off period, the company was not permitted to abrogate the union security and dues checkoff provisions in the parties' collective bargaining agreement.

In this case, unlike the actions taken by the carrier in TWA, it is undisputed that Varig has not implemented any changes in rates of pay, rules, or working conditions which were not contained in Varig's section 6 notice. Compare Seham Aff'd, Ex. A ("Varig Proposals for Negotiations with IAMAW -- [September 11,] 1992") with Complaint, Ex. 14 ("Implementation of Varig's Proposals [December 23, 1993]"). Both the September 11, 1992 list and the final list of implemented changes include, inter alia, changes to subcontracting and an elimination of Article XVIII (the union security clause). Plaintiffs do not dispute Varig's statement of undisputed fact that "subsequent to the completion of the thirty (day) cooling off period, the defendant has only unilaterally implemented changes in conditions of employment that were proposed in its original section 6 notice to defendants [sic]." Def.'s 3(g) Statement, P 5.
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Because Varig made no changes which were not included in its section 6 notice, plaintiffs' allegations -- even if accepted as true -- fail to state a cause of action upon which relief can be granted.

In Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 489 U.S. 426, 103 L. Ed. 2d 456, 109 S. Ct. 1225 (1988), the Court held that a carrier could, during the self-help period, "discriminate against full-time strikers by giving preference to employees who crossed the picket line to return to work before the strike was over." Id. at 443 (Brennan, J., dissenting). In so holding, the Court had occasion to comment on the permissible scope of self-help following the cooling off period. Its observations are worth quoting at length:

Here, TWA and the Union followed without interference the scheme of the RLA to an unsuccessful conclusion and then turned to self-help. We have more than once observed that, at this final stage of a labor dispute regulated by the RLA, "the Act is wholly inexplicit as to the scope of allowable self-help." Such silence does not amount to a congressional imprimatur on all forms of postnegotiation self-help. It does, however, indicate that we should hesitate to imply limitations on all but those forms of self-help that strike a fundamental blow to union or employer activity and the collective bargaining process itself. Accordingly, just as we saw no statutory basis for limiting the secondary activities of unions during a period of self-help . . . we see no basis in § 2 Fourth for prohibiting the crossover policy employed by TWA once bargaining had reached an impasse. Both self-help measures fall squarely within the "full range of whatever peaceful economic power [the parties] can muster" once they have "unsuccessfully exhausted the Railway Labor Act's procedures for resolution of a major dispute . . . ." Neither measure prevented the scheme of the RLA from working; neither measure was inherently destructive of union or employer activity.

Id. at 442 (citations omitted) (emphasis added).

In this case, Varig has only instituted those changes which the Union was on notice were subject to change during self-help because of their appearance in the Company's section 6 notice and its September 11, 1992 list of proposed changes. Implementation of Varig's changes and elimination of the union security clause does not "strike a fundamental blow to union . . . activity and the collective bargaining process itself"; does not "prevent[] the scheme of the RLA from working"; and is not a "measure . . . inherently destructive of union . . . activity" precisely because the Union was on notice that if the parties could not reach a meeting of the minds, these changes were possible. The changes implemented by Varig do not impede the Union's ability to strike or attract new members, nor has it thwarted the RLA's mediation procedure; to the contrary, these changes are a direct result of the failure of the RLA's mediation procedure.

A useful comparison, in this regard, can be made to Local Union 808, International Brotherhood of Teamsters v. P & W Railroad Co., 576 F. Supp. 693 (D. Conn. 1983). In Local Union 808, the union alleged that the company had violated the RLA by unilaterally changing "train crew consists by withholding two scheduled cost-of-living allowances"; making changes in the terms and conditions of employment beyond those set forth in the section 6 notice, and by locking-out the plaintiff. The court denied the company's motion to dismiss because,

A carrier's right to self-help is not boundless, however, and, beyond imposing changes consistent with the Section 6 notice, it is limited to action "reasonably necessary" to continue operations.

Id. Any item, therefore, contained in a party's section 6 notice may be implemented following the statutory cooling off period. Equal Employment Opportunity Comm'n v. United Air Lines, Inc., 755 F.2d 94, 96 (7th Cir. 1985) ("On January 28, 1979, the 'cooling off' period imposed by the [RLA] ended and United was free to put into effect any changes referred to in its section 6 notice.") (Posner, J.) (dicta).

The court in IUFA also made it clear that insubstantial allegations of bad faith bargaining cannot be used to thwart a party's statutory right to engage in legitimate self-help following the conclusion of the mediation proceedings:

The union also argues that Pan Am bargained in bad faith, failed to uphold its statutory obligation to 'maintain' the 1985 Agreement . . . . Upon hearing the testimony and reviewing the evidence it its entirety, however, I am not persuaded that the union is likely to succeed in proving that Pan Am acted in bad faith or with some illegal purpose. To the contrary, it is clear that both sides simply continue to engage in robust, bare-knuckled bargaining, as is evident from the union's attorney's comments at the hearing: . . . Clearly, "a party does not violate its duty under the Act if it chooses to be adamant in its position." REA Express, Inc. v. Brotherhood of Railway, Airline and Steamship Clerks, 358 F. Supp. 760, 772 n.43 (S.D.N.Y. 1973).

IUFA, 624 F. Supp. at 66 n.1. As discussed more fully below, because this Court has reached the conclusion, based upon a review of "the evidence in its entirety" that Varig was not bargaining in bad faith in violation of 45 U.S.C. § 152 First, the Union's allegation of bad faith bargaining is not a basis upon which this court may conclude that Varig's recourse to self-help in this action violates 45 U.S.C. §§ 152 First and Seventh, and 156. The evidence submitted by the Union in support of its allegations of bad faith bargaining is "merely colorable" and is not "significantly probative." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, because summary judgment is appropriate on the second cause of action, the allegations contained therein cannot stand as a bar to a dismissal of the first cause of action.

Also instructive is In re Continental Airlines Corp., 60 Bankr. 466 (Bankr. S.D. Tex. 1986), decided before TWA. In Continental, the union brought a claim for damages stemming from the company's alleged violations of the RLA. The company had moved in the bankruptcy court to reject the collective bargaining agreements at issue based on the contention that they had expired since the parties had exhausted the RLA's mandatory mediation provisions. Originally, the court determined that several provisions of the agreements had not expired because the parties had not bargained to impasse over those provisions in the collective bargaining agreements. The court summarized its position after the company moved to amend the court's earlier memorandum and order:

There is no basis for the IAM's claim that Continental violated the RLA by improperly changing certain provisions of the IAM contracts on August 13 since all of these changes had been subjected to the bargaining and mediation procedures of the RLA.

Id. at 468-69, 471 (emphasis added).
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Continental Airlines, and the cases it relied upon, is of questionable authority given that it was decided before the Supreme Court affirmed TWA. However, both cases stand for the general proposition that after the completion of the RLA's bargaining and mediation procedures, a carrier is free to engage in economic, peaceful self-help so long as the changes implemented were contained in the section 6 notice and the parties either negotiated to an impasse or the implemented changes were "reasonably comprehended" by the union.
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A further gloss was added by the Court in Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 489 U.S. 426, 103 L. Ed. 2d 456, 109 S. Ct. 1225 (1988), in that a carrier or union may not engage in self-help which "strike[s] a fundamental blow to union or employment activity and the collective bargaining process itself." Id. at 442. In this case, the changes implemented by Varig were all contained in its section 6 notice and its September 11, 1992 list of proposed changes, and the parties either negotiated to an impasse (e.g., the issue of subcontracting) or the issue should have been reasonably comprehended by plaintiffs based on the contents of Varig's section 6 notice and its September 11, 1992 list of proposed changes, (e.g., elimination of Article XVIII). As noted above, the changes implemented by Varig do not strike a blow to union activity and the collective bargaining process but are in fact a direct result of union activity and the collective bargaining process (i.e., the inability of the parties to reach an agreement).

Were a strike to be the occasion for a carrier to tear up and annul, so to speak, the entire collective bargaining agreement, labor-management relations would revert to the jungle. A carrier could then use the occasion of a strike over a simple wage and hour dispute to make sweeping changes in its work-rules so as to permit operation on terms which could not conceivably have been obtained through negotiation.

Id. at 247. Plaintiffs argue, therefore, that based on the reasoning of FEC, Varig should not be allowed to make changes in those terms of conditions which were not specifically negotiated prior to the cooling off period or which were not included in the Company's final offer. Varig has not contested plaintiffs' statement that "the defendant did not bargain over, submit to mediation, or arbitrate numerous working conditions that it subsequently imposed on its employees, including the elimination of those employees' contractual union security clause." Pls.' 3(g) Statement, P 5.

In sum, because it is undisputed that the changes implemented by Varig in December of 1993 were included in its section 6 notice and its September 11, 1992 list of proposed changes, and the parties exhausted the mandatory mediation procedure of the RLA, Varig did not, as a matter of law, violate 45 U.S.C. §§ 152 First and Seventh, and 156. In light of the foregoing, applying the principles the court deems controlling to the facts which are not in dispute, the defendant's motion is granted as to the first cause of action.

III. The Second Cause of Action

Plaintiffs' second cause of action alleges a violation of 45 U.S.C. § 152 First. This provision of the RLA imposes a general duty on rail and air carriers and their employees to:

exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.

45 U.S.C. § 152 First. The directive to "exert every reasonable effort to make . . . agreements" is "a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis." Chicago & N. W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1987) (holding that federal district courts have jurisdiction to enforce Section 152 First). The Court has also stated that this statutory obligation is at "the heart of the Railway Labor Act[,]" Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377, 22 L. Ed. 2d 344, 89 S. Ct. 1109 (1969), and that, as with the duty to bargain in good faith as mandated by the NLRA, "the bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition." Chicago & N. W., 402 U.S. at 575 (quoting Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1412-13 (1958)). The obligation codified in Section 152 First is not, therefore a "mere statement of policy or exhortation." Summit Airlines, Inc. v. Teamsters Local Union No. 295, 628 F.2d 787, 790 (2d Cir. 1980) (quoting Chicago & N. W., 402 U.S. at 577).

Examples of actions which can form the basis of a violation of the RLA therefore include an unwillingness to "meet and confer with the authorized representatives of its employees, to listen to their complaints, [and] to make reasonable effort to compose differences[.]" Virginian Ry. Co. v. System Fed'n No. 40, 300 U.S. 515, 548 (1937). In confirming the district court's determination that the company had violated Section 152 First, the Ninth Circuit in Association of Flight Attendants v. Horizon Air, 976 F.2d 541, 545 (9th Cir. 1992), noted that,

To determine whether the parties have engaged in reasonable efforts to reach an agreement or merely gone through the motions, some inquiry into the substance of the negotiations is inescapable, not to weigh the reasonableness of the proposals but only to determine whether they were of such a nature as to indicate an intention not to reach an agreement at all.

As one commentator has noted, "courts will closely scrutinize claims of failure to bargain in good faith in connection with suits to enjoin strikes or unilateral carrier action." 9 T. Kheel, Labor Law § 50.05[3] at 50-34 (1992).

In endeavoring to make the determination as to whether a party to a collective bargaining agreement failed to "exert every reasonable effort to make . . . agreements," the court, as with any allegation of bad faith, must look to the intent of the parties and base its decision on the totality of the evidence. Railway Labor Executives' Ass'n v. Boston & Maine Corp., 664 F. Supp. 605, 615 (D. Me. 1987) (in analyzing claims of bad faith bargaining court must "evaluate the totality of the Railroads' conduct since bad faith must usually be inferred from circumstantial evidence. . . . The controlling determination in these bad faith bargaining claims is the subjective intent of both parties.") Here, the parties have provided the court with an extensive record of their bargaining positions and affidavits regarding the negotiations, and therefore a determination of this claim pursuant to a motion for summary judgment is appropriate because the court has before it "the totality of the [Company's] conduct."

In this case, an examination of the undisputed facts as they relate to the year-long process of negotiations between these parties demonstrates beyond per adventure that no rational trier of fact could conclude that Varig was bargaining in bad faith, and hence summary judgment is appropriate. A close examination of the chronology and the proposals and counterproposals, as set forth in the Complaint, bears this out:

. July 1992. The parties exchange section 6 notices pursuant to the provisions of the RLA. Complaint, P 13.

. September 1992. The parties exchange their lists of proposed changes to the collective bargaining agreement. Complaint, P 13; Exs. 1, 2. Both lists cite many provisions in the collective bargaining agreement. Both parties spread their respective nets wide.

. September 1992 to December 1992. There is a hiatus of three months. During this time, in November of 1992, the IAM notifies Varig that District Lodge 142 has replaced District Lodge 100 as the bargaining agents for Varig employees. Complaint, P 14. The Union does not allege that this break in negotiations was due to Varig's unwillingness to negotiate nor has it challenged Varig's statement that "the Company repeatedly asked Union representatives when meetings would be resumed." Seham, Aff'd, P 6.

. December 1992. Negotiations resume on December 16, 1992 and the Union is informed that Varig will present a shortened list of proposals for changes in the collective bargaining agreement. Complaint, P 15.

. January 1993. The parties meet again on January 13 and 14, 1993. Seham Aff'd, P 7. The Company reduces its proposed changes to five issues: duration, supplemental pension plan, wage scale, medical coverage, and subcontracting. Complaint, Ex. 3. The proposal expires by its own terms on February 13, 1993. Complaint, Ex. 3, at 1.

. September 1993 to October 1993. The parties continue to meet. Complaint, P 21. On October 18, 1993, Varig again opposes any further adjournments of scheduled mediation sessions. Seham Aff'd, Ex. H.
*fn19"

. November 16, 1993. The parties continue to meet during the period of October through December, 1993, Complaint, P 22, and on November 16, 1993, Seham and O'Driscoll have a "side meeting" to discuss terms of a new collective bargaining agreement. Complaint, P 22.

. November 17, 1993. The NMB confirms that it has been released from mediation and that the parties have declined arbitration.

. December 1993. During the month of December 1993, the following occurs:

. The parties meet on December 8, 1993, during the cooling off period. Complaint, P 24.

. Varig submits its "Final Position Statement," Roach Decl., Ex. B, which includes a total of ten items, including, inter alia, duration, subcontracting, and elimination of broker of record. The Union agrees to put the final proposal to a vote.

. The parties meet again on December 20, 1993, and the Union informs Varig that it will vote the final proposal on December 28, 1993. Complaint, P 28.

. The Company posts its notice on December 24, 1993. Complaint, Ex. 13.

The undisputed facts in this action, as set forth above, demonstrate that these parties participated in tenacious, aggressive bargaining. However, as the courts have made clear on several occasions, a party does not violate the RLA by remaining steadfast in its position. IUFA, 624 F. Supp. 64, 66 n.1 (E.D.N.Y. 1985) (finding no violation of duty to bargain in good faith where "it is clear that both sides simply continued to engage in robust, bare-knuckled bargaining . . . ."); REA Express, Inc. v. Brotherhood of Ry., Airline and Steamship Clerks, 358 F. Supp. 760, 772 n.43 (S.D.N.Y. 1973) ("a party does not violate its duty under the Act if it chooses to be adamant in its position."). In this regard, it is significant that Varig included in each and every proposal that changes in subcontracting were essential to the consummation of a new agreement. The documentation also makes clear that the Union was equally adamant that there should be no changes whatsoever to the subcontracting provisions of the collective bargaining agreement. See, e.g., Complaint, Ex. 8 ("The following Union Proposal of Settlement is predicated on the Company's withdrawing any proposals dealing with subcontracting of work other than what is in the present collective bargaining agreement."). As the court in Horizon noted, "courts must resist finding violations of the RLA based solely on evidence of hard bargaining, inability to reach agreement, or intransigent positions." Horizon, 976 F.2d at 545. In this case the record demonstrates that the parties failed to reach an agreement, not because of illegal actions by the Company, but because there was no meeting of the minds vis-a-vis key provisions of the collective bargaining agreement. Based on a review of the record as a whole, no reasonable jury could find otherwise.

Never before this case has a court been asked to examine, at the behest of a union, a scenario of bargaining sessions, for the purpose of finding an employer violation of the bargaining law and imposing on the employer the severe sanctions rather frequently applicable to an "unfair labor practice strike" under the NLRA.

So too in the case before this court: The rough-and-tumble of a year-long series of bargaining sessions cannot form the basis of a violation of the RLA's imperative to bargain in good faith.

The November 16, 1993 "Agreement "

In opposition to the Company's motion for summary judgment, the Union places great reliance on the "agreement in principle" which the parties allegedly reached on November 16, 1993. See Complaint, P 22. The thrust of plaintiffs' argument is that a trier of fact could determine that the parties reached an agreement and that based upon that agreement the Union and the Company jointly requested that the NMB end its mediation efforts so that the Company could hasten the end of the statutory mediation provisions and thus allow it to legally implement its section 6 and September 11, 1992 changes, thus demonstrating its intent not to "exert every reasonable effort to make . . . agreements." 45 U.S.C. § 152 First. This allegation, however, is unpersuasive for several reasons.

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